and unappropriated lands for the benefit of | tution of this state, with the names of such the school fund (Acts of W. Va. 1872-73, p. claimants and the amount claimed by each as 449, chap. 134), and also, for the present, the far as he can ascertain the same." If there act of March 25, 1882, on the same subject were no exception to this report, or if there (Acts of W. Va. 1882, p. 253, chap. 95), be- were any which were overruled, "the court cause both of those acts are amendatory of shall confirm the same and decree a sale of[425] the Code of West Virginia, and their pro- the lands, or any part of them, therein menvisions, so far as they directly or indirectly tioned, which are subject to sale, for the bear upon the present controversy, are pre-benefit of the school fund, upon such terms served and extended. in the Code published in 1887, which contained the law of the state in reference to forfeited lands as it was at that time.

and conditions as to the court may seem right and proper; and in any decree of sale made under this chapter, the court may provide that the commissioner of school lands, From chapter 105 of the Code of West or other person appointed commissioner to Virginia, published in 1887, it appears that make such sale, may receive bids for such all lands forfeited to the state for the failure lands, without any notice of sale; and if the to have the same entered upon the land former owner or owners, or person in whose books of the proper county and charged with name the land was returned delinquent and the taxes thereon, as provided by law-so far forfeited, or the heirs or grantee of such as the title thereof was not vested in junior owner or person, or any person or persons grantees or claimants under the provisions holding a valid subsisting lien thereon, at of the Constitution and laws of the state the time of such forfeiture, bid a sum suffiwere required to be sold for the benefit of the cient to satisfy such decree and the costs of [424]school fund-the auditor to certify to the the proceeding and sale, and such person or clerk of the circuit court a list of all such persons so bidding be the highest bidder, lands (which, or the greater part of which, said commissioner shall sell the land on such were in his county), within sixty days after bid, and report the same to the court for the title thereto vested in the state. Tha confirmation; but if the commissioner receive act made it the duty of the commissioner of no bid from any such person, or if he shall school lands to file his petition in the circuit receive a higher bid therefor from any other court and pray for the sale of the lands for the person not so mentioned, then and in either benefit of the school fund. He was required event the said commissioner shall sell the land to state in his petition "all the tracts, lots, at public auction to the highest bidder, after and parts and parcels of any tract or lot of first giving such notice as may be provided land so liable to sale, in the circuit court of by such decree." By the same act it was his county, praying that the same be sold for provided: "The former owner of any such the benefit of the school fund," and, accord- land shall be entitled to recover the excess of ing to the best of his information and belief, the sum for which the land may be sold over the local situation, quantity or supposed the taxes charged and chargeable thereon, or quantity, and probable value of each tract, which, if the land had not been forfeited, lot, or parcel, and part of a tract of land would have been charged or chargeable theretherein mentioned, together with all the facts on, since the formation of this state, with at his command, in relation to the title to interest at the rate of twelve per centum per the same, and to each tract, lot, part, or par- annum and the costs of the proceedings, if cel thereof, the claimant or claimants thereof, his claim be filed in the circuit court that deand their residence, if known, and, if not crees the sale, within two years thereafter, known, that fact shall be stated, and stating as provided in the next succeeding section." also how and when and in whose name every But the part of chapter 105 of the Code such tract, lot, and parcel, and part of a which has the most direct bearing on the tract or lot, was forfeited to the state." Pro-question under consideration is § 14, which, vision was made for the reference of the pefter providing that the owner may, upon tition to a commissioner in chancery, "with his petition to the circuit court, obtain an instructions to inquire into and report upon order for the payment to himself of the exthe matters and things therein contained, cess just mentioned, proceeds: "At any and such others as the court may think prop-time during the pendency of the proceedings er to direct, and particularly to inquire and for the sale of any such land as hereinbefore report as to the amount of taxes and interest mentioned, such former owner, or any creditdue and unpaid on each tract, lot, and parcel, or *of such former owner of such land, having[426] and part of a tract or lot of land mentioned a lien thereon, may file his petition in said cirin the petition, in whose name it was for-cuit court as herein before provided, and askfeited, and when and how forfeited, in whom ing to be allowed to redeem such part or the legal title was at the time of the forfei- parts of any tract of land so forfeited, or the ture, and, if more than one person claimed whole thereof, as he may desire, and upon adverse titles thereto at the date of the for- such proof being made as would entitle the feiture, the name of each of such claimants petitioner to the excess of purchase money and a reference to the deed book or books in herein before mentioned, such court may al which the title papers of any claimant there- low him to redeem the whole of such tract if of can be found; what portion or portions, he desire to redeem the whole, or such part or if any, of such lands is claimed by any per-parts thereof, as he may desire, less than the son or persons under the provisions of sec-whole, upon the payment into court, or to tion three of article thirteen of the Consti- the commissioner of school lands, all costs,


the same and decree a sale of the lands for
the benefit of the school fund; and,

That at any time during the pendency of the proceedings instituted for the sale of forfeited lands for the benefit of the school fund, the owner, or any creditor of the owner having a lien thereon, might file his petition in the circuit court of the county for the redemption of his lands upon the payment into court, or to the commissioner of school lands, of all costs, taxes, and interest due thereon, and obtain a decree or order declaring the lands redeemed so far as the title thereto was in the state immediately before the date of such order.

These provisions were substantially preserved in chapter 105 as amended and re-enacted in 1891 and 1893. Code of West Va 1891, p. 731; Acts of West Va. 1893, p. 57. But in the Code of 1891 will be found this additional and important provision (Acts 1891, chap. 94):

taxes, and interest due thereon, as provided in this chapter, if he desire to redeem the whole of such tract; or if he desire to redeem less than the whole of such tract, upon the payment as aforesaid, of so much of the costs, taxes, and interest due on such tract as will be a due proportion thereof for the quantity so redeemed. But if the petition be for a redemption of a less quantity than the whole of such tract, it shall be accompanied with a plat and a certificate of survey of the part or parts thereof sought to be redeemed. Whenever it shall satisfactorily appear that the petitioner is entitled to redeem such tract, or any part or parts thereof, the court shall make an order showing the sum paid in order to redeem the whole tract or the part or parts thereof which the petitioner de sires to redeem, and declaring the tract, or part or parts thereof, redeemed from such forfeiture, so far as the title thereto was in the state immediately before the date of such order; which order, when so made, shall op- "Sec. 18. In every such suit brought under[428] erate as a release of such forfeiture so far as the provisions of this chapter, the court shall the state is concerned, and of all former taxes have full jurisdiction, power, and authority to on said tract, or part or parts thereof so re-hear, try, and determine all questions of title, deemed, and no sale thereof shall be made. possession, and boundary which may arise If the redemption be of a part or parts of a therein, as well as any and all conflicting tract, the plat or plats and certificate of the claims whatever to the real estate in question survey thereof hereinbefore mentioned, to arising therein. And the court in its discregether with a copy of the order allowing the tion may at any time, regardless of the eviredemption, shall be recorded in a deed book, dence, if any, already taken therein, direct an in the office of the clerk of the county court. issue to be made up and tried at its bar as to Provided, That such payment and redemption any question, matter, or thing arising thereshall in no way affect or impair the title to in, which, in the opinion of the court, is propany portion of such land transferred to and er to be tried by a jury. And if any such isvested in any person, as provided in section sue be as to the question of title, possession, three of article thirteen of the Constitution or boundary of the land in question, or any part of it, it shall be tried and determined [427] *It thus appears that when the lands in in all respects as if such issue was made up in question and others embraced in the Morris an action pending in such court. And every patent were, as is contended, forfeited to the such issue shall be proceeded in, and the trial state for the failure of the owner during the thereof shall be governed by the law and prac five consecutive years after they were re-tice applicable to the trial of an issue out of deemed by Randall, trustee, in 1883, to have them entered upon the land books of the proper county and charged with the taxes thereon, it was provided by the statutes of West Virginia:

of this state."

That all lands thus forfeited to the state should be sold for the benefit of the school fund;

That the sale should be sought by petition filed by the commissioner of school lands in the proper circuit court, to which proceeding all claimants should be made parties, and be brought in by personal service of summons upon all found in the county, or by publication as to those who could not be found;

That the petition should be referred to a commissioner in chancery, who should report upon the same and upon such other things as the court might direct, and particularly as to the amount of taxes due and unpaid upon any lands mentioned in the petition, in whose name and when and how forfeited, and in whom the legal title was at the time of the forfeiture:

That if there were no exceptions to the report, or if there were exceptions which were overruled, the court was required to confirm

chancery; and the court may grant a new trial therein as in other cases tried by a jury." And this provision was preserved, substantially, in the act of 1893, amendatory of chapter 105 of the Code of West Virginia.

If, as contended, the state, without an inquisition or proceeding of some kinu declaring a forfeiture of lands for failure during a named period to list them for taxation, and by force alone of its Constitution or statutes, could not take the absolute title to such lands, still it was in its power by legislation to provide, as it did, a mode in which the attempted forfeiture or liability to forfeiture could be

removed and the owner enabled to retain the full possession of and title to his lands. We should therefore look to the Constitution and statutes of the state together for the purpose of ascertaining whether the system of taxation established by the state was, in its essential features, consistent with due process of law. If, in addition to the provisions contained in the Constitution, that instru ment had itself provided for the sale of for feited lands for the benefit of the school fund, but reserved the right to the owner, before sale and within a reasonable period, to pay

the taxes and charges due thereon, and there in which process, in its nature final, issues by relieve his land from forfeiture, we do not against the body, lands, and goods of certain suppose that such a system would be held to public debtors without any such trial; and (429]* be inconsistent with due process of law. If this brings us to the question whether those this be true it would seem to follow necessar-provisions of the Constitution which relate ily that if the statutes of the state, in connec- to the judicial power are incompatible with tion with the Constitution, gave the taxpay- these proceedings." Again: "The power to er reasonable opportunity to protects lands collect and disburse revenue, and to make all against a forfeiture arising from his failure laws which shall be necessary and proper for to place them upon the land books, there is carrying that power into effect, includes all no ground for him to complain that his prop- known and appropriate means of effectually erty has been taken without due process of collecting and disbursing that revenue, unless law. some such means should be forbidden in some other part of the Constitution. The power has not been exhausted by the receipt of the money by the collector. Its purpose is to raise money and use it in payment of the debts of the government; and, whoever may have possession of the public money, until it is actually disbursed, the power to use those known and appropriate means to secure its due application continues. As we have already shown, the means provided by the act of 1820 do not differ in principle from those employed in England from remote antiquity


Much of the argument on behalf of the plaintiff proceeds upon the erroneous theory that all the principles involved in due process of law as applied to proceedings strictly judicial in their nature apply equally to proceedings for the collection of public revenue by taxation. On the contrary, it is well settled that very summary remedies may be used in the collection of taxes that could not be applied in cases of a judicial character. This subject was fully considered in Den, Murray's Lessee, v. Hoboken Land & Improve ment Co. 18 How. 272,280,281,282 [15: 372, and in many of the states, so far as we 376, 377], which arose under the act of Con- know, without objection-for this purpose, gress of May 15, 1820, providing for the better at the time the Constitution was formed. organization of the Treasury Department. may be added, that probably there are few The account of a collector of customs having governments which do or can permit their been audited by the first auditor and certified claims for public taxes, either on the citizen by the first comptroller of the Treasury, a or the officer employed for their collection or distress warrant for the balance found to be disbursement, to become subjects of judicial due was issued by the solicitor of the Treas- controversy, according to the course of the ury, in accordance with the act of Congress, law of the land. Imperative necessity has and levied upon the lands of the collector. forced a distinction between such claims and The question presented was whether such a all others, which has sometimes been carried proceeding was consistent with due process out by summary methods of proceeding and of law-the objection to it being that it was sometimes by systems of fines and penalties [431] judicial in its nature and that it operated to but always in some way observed and yielded deprive the debtor of his property without a to." In Bell's Gap R'd Co. v. Pennsylvania, hearing or trial by jury and without due 134 U. S. 232, 239 [33: 892, 896], it was said process of law. This court said, among other that "the process of taxation does not rethings: "Tested by the common and stat- quire the same kind of notice as is required in ute law of England prior to the emigration a suit at law, or even in proceedings for takof our ancestors and by the laws of many of ing private property under the power of emithe states at the time of the adoption of this nent domain. It involves no violation of due Amendment, the proceedings authorized by process of law when it is executed according the act of 1820 cannot be denied to be due to customary forms and established usages, process of law when applied to the ascertain- or in subordination to the principles which ment and recovery of balances due to the underlie them." This must be so, else the government from a collector of customs, un-existence of government might be put in peril less there exists in the Constitution some by the delays attendant upon formal judicial other provision which restrains Congress proceedings for the collection of taxes. from authorizing such proceedings. For, In this connection reference may be made (430]though 'due process of law' generally* implies to what was said by the supreme court of and includes actor, reus, judex, regular alle- appeals in McClure v. Maitland, above cited, gations, opportunity to answer, and a trial touching the rights of the owner of lands foraccording to some settled course of judicial feited to the state, and for the sale of which proceedings (2 Inst. 47, 50; Hoke v. Hender- proceedings were instituted by the commisson, 15 N. C. (4 Dev. L.) 15 [25 Am. Dec.sioner of school lands. That court said: "The 677]; Taylor v. Porter, 4 Hill, 146, 40 Am. Dec. 274; Vanzandt v. Waddel, 2 Yerg. 260; Bank of the State v. Cooper, 2 Yerg. 599 [24 Am. Dec. 517]; Jones's Heirs v. Perry, 10 Yerg. 59, 30 Am. Dec. 430; Greene v. Briggs, 1 Curt. C. C. 311), yet this is not universally true. There may be and we have seen that there are cases, under the law of England after Magna Charta, and as it was brought to this country and acted on here,

title to the land and all the right and interest of the former owner having thus, by his default and the operation of the law, become absolutely vested in the state and become irredeemable, she, having thus acquired a perfect title to, and unqualified dominion over, the land, had the undoubted right to hold or dispose of it for any proper purpose, in any manner and upon any terms and conditions she might in her sovereign capacity deem

proper, without consulting the former owner of the state court, observed that what was or anyone else. For after the forfeiture had said in McClure v. Maitland, as to the landbecome complete, as it had in the case before owner not being entitled of right to be made us, the former owner had no more claim to or a party to the proceeding instituted for the lien upon the land than one who never had sale of forfeited lands for the benefit of the pretended to own it. In the exercise of this school funds, had reference to the then existperfect dominion over her own property the ing act which was changed by the act of 1882. state saw proper to transfer and vest her title Answering the suggestion that the proceedto so much of said land owned by her, in ings under the new law were not judicial, the any person, other than those who occasioned court said: "Now, why, with parties plaintiff the default, as such person may have been and defendant, process, pleading, hearing bein the actual possession of, or have just title tween the parties, decree, etc., it is not, if not to, claiming the same, and was not in default technically a chancery suit, yet a suit, I canfor the taxes thereon chargeable to him. . . . not see; a suit under a special statute, it is The laws, as we have shown, by their own true, but none the less a suit. So, substanforce, transferred to and vested the title to tially, it was regarded in Hays v. Camden's the land absolutely in the state without any Heirs, 38 W. Va. 109, 18 S. E. 461. Proceedjudicial inquiry or inquest of any kind. ings at rules take place as in ordinary and [432]There could therefore be no necessity or rea- common-law suits. In some places it is called sen for proceeding in rem against the land. a 'suit.' But I know that it is said by those That had already become the absolute prop- holding the other view that the question is erty of the state, and she had a perfect right not to be tested by the circumstances, such to sell it without further inquiry. All the as I have alluded to, the presence of pleading, laws providing for the sale of these lands pre-process, hearing, etc., but it must be tested supposed the title to have vested in the state by the nature of the proceeding; that is, that prior to the commencement of the proceed- it is only an administrative process by the ings. In fact the whole authority of the com- state, through an officer and court, to realize missioner and the jurisdiction of the court money on its own property. But to this I are based upon the assumption that the un-reply that though the state might make the conditional title is in the state; for unless such is the fact neither has any authority to act. Twiggs v. Chevallie, 4 W. Va. 463. And all the right, title, and interest of the former owner having been completely devested, he has not a particle of interest in the land-no more than if he had never owned it; there is therefore no possible reason for making him a party or proceeding against him in personam or otherwise. The proceeding is of necessity, then, neither in rem nor in personam; and as all judicial proceedings properly so styled must belong to either the one or the other of these classes, it follows that this is not and cannot be in any technical sense a judicial proceeding."

proceeding such, and did in its acts up to 1882, yet by its act in 1882 it changed the proceeding from one ex parte to one inter partes, and clothed the proceeding with all the habiliments of a suit; and still it did not proceed against the land, taking the act of forfeiture as a concession, and simply at once sell the land, but it subjected its right and title under the supposed forfeiture to question and investigation under the law through a suit, called in all interested adversely to its claim, and gave them leave to contest its right, and made its claim the subject of litigation."

It thus appears that under the statutes of West Virginia in force after 1882 the owner It is said that this shows that the taxpay-of the forfeited lands had the right to become er, after his land is forfeited to the state, is left by the statutes of West Virginia without any right or opportunity, by any form of judicial proceeding, to get it back or to prevent its sale, and, therefore, it is argued, he is absolutely devested of his lands solely by reason of his failure to place them on the proper land books.

a party to a judicial proceeding, of which he was entitled to notice, and in which the court had authority to relieve him, upon terms that were reasonable, from the forfeiture of his lands.

*It is said that the landowner will be wi [434] out remedy if the commissioner of the scho fund should fail to institute the proceeding in which the statute permitted such owner to intervene by petition and obtain a redemption of his lands from the forfeiture claimed by the state. It cannot be assumed that the commissioner will neglect to discharge a duty expressly imposed upon him by law, nor that the courts are without power to compel him to act, where his action becomes necessary for the protection of the rights of the landowner.

An answer to this view is, that what was said in McClure v. Maitland, on this point, had reference to proceedings under the act of November 18, 1873 (Acts 1872-73, p. 449, chap. 134), which were not judicial in their nature but administrative. But, as declared in Hays, Com'r, v. Camden's Heirs, 38 W. Va. 109, 110, the act of 1873 was so amended by the act of March 25, 1882 (Acts W. Va. 1882, p. 253, chap. 95), as to make the proceeding in the circuit court for the sale of forfeited It is further said that a forfeiture may lands, in which the owners or claimants could arise under the Constitution of West Virintervene and effect a redemption of theirginia despite any effort of the landowner to lands from forfeiture, a judicial proceeding. This view was reaffirmed in Wiant v. Hays, Com'r, 38 W. Va. 681, 684, in which Judge (433]Brannon,*delivering the unanimous judgment 171 U. S. U. S., Book 43.


prevent it; that although the owner may
direct his lands to be entered on the proper
land books, and that he be charged with the
taxes due thereon, the custodian of such


failure of those who owned or claimed to own
large tracts of lands, patented in the last cen-
tury, or early in the present century, to put
them on the land books, so that the extent
and boundaries of such tracts could be easily
ascertained by the officers charged with the
duty of assessing and collecting taxes.
Where the tract was a small one, the proba-
bility was that it was actually occupied by
someone, and its extent of boundary could

ment and taxation. We can well understand
why one policy could be properly adopted as
to large tracts which the necessities of the
public revenue did not require to be prescribed
as to small tracts. The judiciary should be[436)
very reluctant to interfere with the taxing
systems of a state, and should never do so
unless that which the state attempts to do,
is in palpable violation of the constitutional
rights of the owners of property. Under this
view of our duty, we are unwilling to hold
that the provision referred to is repugnant to
the clause of the 14th Amendment forbidding
a denial of the equal protection of the laws.

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books may neglect to perform his duty. Thus, | it is argued, the lands may be forfeited by reason of the landowner not having been, in fact, charged on the land books with the taxes due from him, although he was not responsible for such neglect. We do not so interpret the state Constitution or the statutes enacted under it. If the landowner does all that is reasonably in his power to have his lands entered upon the land books and to cause himself to be charged with taxes there-be readily ascertained for purposes of assesson, no forfeiture can arise from the owner not having been "charged on such books" with the state tax. The state could not acquire any title to the lands merely through the neglect of its agent having custody or control of its land books. Any steps attempted to be taken by the officers of the state, based upon such neglect of its agent, the taxpayer not being in default, would be without legal sanction, and could be restrained by any court having jurisdiction in the premises. We go further, and say, that any sale had under the statute providing for a sale, under the order of court, for the benefit of the school fund, of lands alleged to be forfeited by reason of their not having been charged on the land books for five consecutive years with the state tax due thereon, would be absolutely void, if the landowner was not before the court, or had not been duly notified of the proceedings, but had done all that he could reasonably do to have his [435]lands entered on the proper books and to cause himself to be charged with the taxes due thereon. If the state was not entitled to treat them as forfeited lands, that fact could be shown in the proceeding instituted for their sale as lands of that character, and the rights of the owner fully protected. In the present case, it does not appear that any evidence was offered tending to show that the absence from the land books of any charge of taxes on the lands claimed by the plaintiff during five consecutive years after their redemption by Randall, trustee, in 1883 was due to any neglect of the officers of the state, or that the plaintiff, or those under whom he asserts title, entered or attempted to enter the lands upon the land books, or that he or they caused or attempted to cause the lands to be charged with taxes thereon. But there was evidence tending to show that the requirements of the Constitution were not met during any of the years from 1883 to the bringing of this action. So far as the record discloses, it is a case of sheer neglect upon the part of the landowner to perform the duty required of him by the Constitution and statutes of the state.

Another point made by the plaintiff in error is that the provision of the Constitution of Virginia exempting tracts of less than 1,000 acres from forfeiture is a discrimination against the owners of tracts containing one thousand acres or more, which amounts to a denial to citizens or landowners of the latter class of the equal protection of the laws. We do not concur in this view. The evil intended to be remedied by the Constitution and laws of West Virginia was the persistent

For the reasons stated, we hold that the
system established by West Virginia, under
which lands liable to taxation are forfeited to
the state by reason of the owner not having
caused to be placed,
them placed, or
on the
during five consecutive years,
land books for taxation, and
caused himself to be charged with the taxes
thereon, and under which, on petition re-
quired to be filed by the representatives of
the state in the proper circuit court, such
lands are sold for the benefit of the school
fund, with liberty to the owner, upon due
notice of the proceeding, to intervene by pe-
tition and secure a redemption of his lands
from the forfeiture declared by paying the
taxes and charges due upon them, is not in-
consistent with the due process of law re-
quired by the Constitution of the United
States or the Constitution of the state.

Having discussed all the points suggested
by the assignments of error which we deem
it necessary to examine, we conclude this
opinion by saying that as neither the plain-
tiff nor those under whom he claims title
availed themselves of the remedy provided by
the statutes of West Virginia for removing
the forfeiture arising from the fact that, dur-
ing the years 1884, 1885, 1886, 1887, and 1888,
the lands in question were not charged on
the proper land books with the state taxes
thereon for that period or any part thereof,
the forfeiture of such lands to the state was
not displaced or discharged, and the circuit
court properly directed the jury to find a ver-
dict for the defendants. The plaintiff was en-
titled to recover only on the strength of his
own title. Whether the defendants had
good title or not the plaintiff had no such in-
terest in or claim to the lands as enabled him
to maintain his action of ejectment. We con-
cur in what the aupreme court of appeals of
Virginia said in a case recently decided: "In[ 437)
an action of ejectment the plaintift must re-
cover on the strength of his own title, and if
it appear that the legal title is in another,

171 U. S

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